Fournier v. Great Atl. & Pac. Tea Co.

• Decision Date: 16 December 1929
• Citation: 148 A. 147
• Parties: FOURNIER v. GREAT ATLANTIC & PACIFIC TEA CO. HUTCHINS v. SAME.
• Court: Maine Supreme Court

148 A. 147

FOURNIER

v. GREAT ATLANTIC & PACIFIC TEA CO.

HUTCHINS

v. SAME.

Supreme Judicial Court of Maine.

Dec. 16, 1929.

Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Two separate actions by Frank X. Founder and Joseph W. Hutchins, brought for the benefit of the City of Brewer, against the Great Atlantic & Pacific Tea Company. Verdict for plaintiffs. On defendant's exceptions. Exceptions sustained.

Argued before DEASY, C. J., and DUNN, STURGIS, PATTANGALL, and FARRINGTON, JJ.

A. M. Rudman, Charles J. Hutchings, and Donald F. Snow, all of Bangor, for plaintiff.

Gillin & Gillin and James M. Gillin, all of Bangor, for defendant.

STURGIS, J. The city of Brewer, having paid or become liable for compensation awarded the nominal plaintiffs for injuries alleged to have been received by them as a result of the negligence of an employee of the defendant corporation, brings these two actions under its right of subrogation given by the Workmen's Compensation Act in section 26, c. 238, of the Public Laws of 1919, as amended by section 8 of chapter 222, Public Laws of 1921. Tried together below, the cases come forward in one record on exceptions and general motions for new trials.

The two cases are given a single consideration on this review. It will extend only to a determination of the controlling questions of law and those which of necessity will be involved in further trials of the same or similar causes of action.

I. At the close of the testimony, the defendant moved in both cases for directed verdicts on the ground there was no evidence that (1) the actions were brought by the employer under its statutory right of subrogation, or (2) that the employee filed written demands on the employer to pursue its remedy against the defendant, or (3) the employer refused so to do for 90 days thereafter. The motions were denied, and exceptions reserved.

The pertinent provisions of section 8, c. 222, Pub. Laws 1921, are:

"Sec. 26. * * * When any injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act, any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person. * * *

"The failure of the employer or compensation insurer in interest to pursue his remedy against the third party within ninety days after written demand by a compensation beneficiary, shall entitle such beneficiary or his representatives to enforce liability in his own name. * * *"

Subrogation under this section is a matter of law. Without an assignment, the employer, upon paying or becoming liable for compensation awarded his employee for injuries received at the hands of a third person, is at once vested with the injured beneficiary's right of action against the wrongdoer, and an action may be brought either in the name of the employer or in the name of the employee for the benefit of the employer. Donahue v. Thorndike. & Hix, 119 Me. 20, 109 A. 187.

In the instant cases the plaintiffs, in their writs, each declared, that his action is brought "for the benefit of the City of Brewer." They each aver that their award of compensation has been paid or liability therefor incurred by the city of Brewer and proof supporting this averment in plenary. With judicial knowledge of resulting legal subrogation, and nothing to the contrary appearing, it is to be inferred, and must be presumed, we think, that the real plaintiff in these actions (the city of Brewer) brings these suits under its right of subrogation. Further evidence on this issue seems unnecessary.

The defendant takes no more by the second ground advanced in support of its motion. The employer's right of action by subrogation, once vested by the statute, continues until and unless the employer fails to pursue its remedy for 90 days after demand by the compensation beneficiary. Failure to bring suit within the 90-day period is deemed an express waiver of the employer's right of action, and the employee is then reinvested with his original right of action, and alone can pursue it. In his suit, the issues involved "center about tortious liability of the defendant." Waiver of the subrogated right of the employer need not be alleged or proved in an action by the employee. Foster v. Hotel Co., 128 Me. 50, 145 A. 400.

In an action by the employer under his right of subrogation, the same principles must apply. The action is the common-law action of the employee assigned by law to the employer. Travelers' Ins. Co. v. Foss, 124 Me. 399, 130 A. 210. The issues of fact there, as in a suit by the employee, pertain to the "tortious liability of the defendant," and allegations or proof of nonwaiver of the employer's right of subrogation are as unnecessary as like allegations and proof of waiver are in actions by the employee. Nonwaiver is a matter of defense, with the burden upon the defendant to prove it.

The motion for directed verdicts in these suits was properly denied by the Presiding Justice.

II. In the suit in the name of Frank X. Fournier, the plaintiff, in his original declaration, specifically describes his injuries in these words: "He was violently knocked to the ground and dragged by said automobile of the defendant thereby dislocating the right knee and rupturing the ligaments of the leg of said Frank X. Fournier and causing shock and multiple abrasions especially of the legs and back of the said Frank X. Fournier; * * * and that thereby he, the said Frank X. Fournier, was caused to have and endure great pain and suffering for a long space of time and is still enduring great pain and suffering and will continue to endure great pain and suffering and, has been unable to follow his course of employment or do any work whatsoever and will be unable to do any work for a great space of time, and has been obliged to expend large sums of money for nursing, hospital care and doctors and will be obliged to continue to expend, large sums of money for hospital care and doctors, medicine and medical supplies. * * *"

In the course of the trial, upon, this pleading, the Presiding Justice, against the objection of the defendant, admitted, and refused to strike out on motion evidence tending to prove that the plaintiff's injuries were permanent. Exceptions were taken. At recess, immediately following, against objection with exception reserved, an amendment was allowed adding an allegation that "said injuries are permanent." The evidence of permanency of injuries, previously admitted, was not reoffered.

The distinction between general and special damages and the necessity of a special averment to permit proof and recovery of special damages is well settled. General damages, that is, such as naturally, logically, and necessarily result from the injury complained of, need not be specially pleaded, but may be proved and recovered under a general allegation of damage. Hunter v. Stewart, 47 Me. 419. To permit recovery of special damages they must be specially averred. Brown v. Linn Woolen Co., 114 Me. 266, 95 A. 1037; Tyler v. Salley, 82 Me. 128, 19 A. 107; Thorns v. Dingley, 70 Me. 100, 35 Am. Rep. 310; Furlong v. Polleys, 30 Me. 491, 50 Am. Dec. 635.

So, too, with proof of special damages. Without allegations of special damages, the plaintiff can prove only such damages as are the necessary as well as the proximate result of the acts complained of. Veazie v. Moor, 14 How. 568, 14 L. Ed. 545; Tomlinson v. Derby, 43 Conn. 562; Adams v. Gardner, 78 Ill. 568; Brown v. Cummings, 7 Allen (Mass.) 508; Roberts v. Fitzgerald, 33 Mich. 4; Gumb v. St. R. Co., 114 N. Y. 411, 21 N. E. 993; Stanfleld v. Phillips, 78 Pa. 73; 1 Chitty on Pleading, 16 Am. Ed. 411; 2 Greenleaf on Evidence, § 254; 17 Corpus Juris, 1004.

The crucial question upon this branch of this case is whether a permanent injury in an action of negligence for personal injuries is to be deemed general or special damages. The question has not been decided in this state.

In Massachusetts, where, by Public Statutes 1882, c. 167, § 94, the ad damnum is a sufficient allegation of damage in all actions of tort in which special damages are not claimed, in McCarthy v. Boston Elevated Railway, 223 Mass. 568, 573, 112 N. E. 235, a claim for permanent injury was regarded as general damages to be recovered under the ad damnum.

The same view is taken in Illinois. In West Chicago St. R. R. Co. v. McCallum, 169 Ill. 240, 48 N. E. 424, that court, affirming its earlier decisions, reaches the conclusion that the jury may award damages for permanent injury not specially alleged, upon the reasoning that the permanency of the plaintiff's injury is merely evidence to be considered by the jury in determining its severity, and the plaintiff is not required to set forth in his declaration the evidence upon which he relies.

The weight of authority, however, seems to support a different rule. In 17 Corpus Juris, 1012, under the title of Damages, the editor writes: "If it is expressly averred that the injuries are permanent, proof thereof is, of course, admissible; but such an express averment is not necessary, where facts, from which the permanency of the injury will necessarily be implied, are alleged. Where a permanent disability is, however, not a probable result of the injury alleged, there must be a special averment in order that there may be a recovery therefor."

In Thompson on Negligence, vol. 6, § 760, we find it said: "It is not required, that the complaint should specifically allege that the injuries are permanent where a fair construction of the allegations shows this fact, such...